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EXHIBIT 10.23
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (the "Agreement"), effective as of the Commencement
Date, between WAKEFIELD ENGINEERING, INC. a Delaware corporation (the
"Company"), and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the "Employee").
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein, the parties hereto agree as follows:
1. Employment Duties and Acceptance.
1.1 The Company hereby employs the Employee, for the Term (as
hereinafter defined), to render exclusive full- time services to the business
of the Company as the President and Chief Executive Officer of the Company,
subject to the direction of the Board of Directors of the Company and the
Chairman of its Board of Directors, and, in connection therewith, to perform
such executive, marketing, product development, administrative and managerial
duties as he shall reasonably be directed by the Board of Directors of the
Company or the Chairman of the Board of Directors to perform.
1.2 Acceptance of Employment by the Employee. The Employee hereby
accepts such employment and agrees to render the executive and managerial
services described above on the terms and conditions set forth.
1.3 Place of Employment. The services to be performed hereunder
by the Employee shall be performed primarily at the offices of the Company in
Wakefield, Massachusetts, subject to reasonable travel requirements on behalf
of the Company, including (without limitation) to Company's existing and future
facilities.
1.4 Vacation. The Employee shall be entitled to vacation at the
rate of three weeks for each twelve months of his employment during the Term,
without compensation for any accrued and unused vacation days as of the end of
the Term.
2. Term of Employment. The term of the Employee's employment under this
Agreement (the "Term") shall commence on November 4, 1996 (the "Commencement
Date") and shall end on October 31, 1998, unless sooner terminated pursuant to
Article 4 of this Agreement. Upon termination of the Term, the Employee will
leave with the Company all memoranda, notes, records, drawings, manuals, disks,
or other documents and media pertaining to the Company's business, including
all copies thereof.
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3. Compensation.
3.1 Salary and Benefits. As full regular compensation for all
services to be rendered pursuant to this Agreement, the Company agrees to pay
the Employee, during the Term, a salary at the fixed rate of $150,000 per annum
(the "Annual Salary"). Said Annual Salary will be payable in such payroll
installments as the Company ordinarily pays its salaried employees, less such
deductions and withholdings as shall be required by applicable law and
regulations.
3.2 Moving Expense Reimbursement. As an inducement to the
Employee to enter into this Agreement, the Company shall reimburse Employee for
moving and relocation expenses in accordance with Alpha's reimbursement policy
previously delivered to Employee.
3.3 Options. As a further inducement to the Employee to enter
into this Agreement, Alpha Technologies Group, Inc. (":ATGI"), the Company's
parent, is herewith granting to the Employee an option to purchase 60,000
shares of ATGI's common stock under its 1994 Stock Option Plan (the "Plan") at
an exercise price reflecting the market price of the Common Stock on the
Commencement Date. Such Options shall vest in three equal, consecutive,
cumulative installments, shall terminate five years from the date of grant and
shall be governed, in all respects, by the Plan.
3.4 Bonus Compensation. The Company shall pay the Employee
incentive compensation in an amount to be agreed upon in writing by the Company
and the Employee, but not less than $15,000, for the period beginning with the
Commencement Date and ending October 31, 1997. All such payments shall be less
such deductions and withholdings as may be required by applicable law and
regulations.
3.5 Expenses. The Company shall reimburse the Employee for all
reasonable expenses actually incurred or paid by him during the Term in the
performance of his services under this Agreement, upon presentation of expense
statements or vouchers of such other supporting information as it may require;
provided, however that the maximum amount available for such expenses during
any period may be fixed in advance by the Chairman of the Board of Directors.
3.6 Benefits and Profit Sharing Plans. The Employee shall be
eligible to all rights and benefits under any pension, group insurance or other
so-called "fringe" benefits and profit sharing plans which the Company may, in
its sole discretion, provide for him and its senior employees generally.
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3.7 Limitations Imposed by Law. The provisions of this Agreement
relating to compensation to be paid to the Employee shall be subject to and
limited by any applicable provision of law, regulation or order which may from
time to time restrict or limit the compensation to be paid hereunder.
3.8 Automobile. The Company shall provide Employee with a new
automobile upon commencement of the Term for Employee's exclusive use during
the Term. The non-business use of such automobile shall be treated as
compensation to Employee in accordance with applicable Internal Revenue Service
guidelines.
4. Termination.
4.1 Termination upon Death. If the Employee shall die during the
Term, this agreement shall terminate, except that the Employee's legal
representatives shall be entitled to receive the annual Salary provided for in
Section 3.1 of the Agreement to the 60th day after the date of the Employee's
death.
4.2 Termination upon Disability. If during the Term the Employee
shall become physically or mentally disabled, whether totally or partially, so
that he is unable substantially to perform his services hereunder for (i) a
period of three consecutive months, or (ii) for shorter periods aggregating
three months during any twelve-month period, the Company may at any time after
the last day of the third consecutive month of disability or the day on which
the shorter periods of disability shall have equaled an aggregate of three
months, by written notice to the Employee (but before the Employee has
recovered from such disability), terminate the term of the Employee's
employment hereunder. Notwithstanding such disability the Company shall
continue to pay the Employee the Annual Salary herein provided for in Section
3.1 up to and including the date of such termination. Nothing in this Section
4.2 shall be deemed to extend the Term.
4.3 Termination for Cause. Nothing contained herein shall
preclude the Company from terminating this Agreement for cause without notice,
in which case the Company shall have no further obligation to the Employee.
Upon such termination no incentive compensation shall be payable for the fiscal
year in which the termination took place. As used herein the term "for cause"
shall be deemed to include, with respect to the Employee, breach of any of his
representations in this Agreement, chronic alcoholism, drug addiction, criminal
dishonesty, conviction of the Employee of any felony, or of any lesser crime of
offense involving the property of affairs of the Company or ATGI, or any of its
subsidiaries or operations, willful violation of specific and lawful directions
from the Board of Directors or the Chairman of the Board or the Company (which
directions must not be inconsistent with the provisions of this Agreement),
willful
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misconduct by the Employee in connection with the performance of his duties
hereunder, or any other misconduct on the part of the Employee seriously
detrimental to the best interest of the Company or that of its subsidiaries or
operations.
5. Employee's Representation.
5.1 Representations. The Employee represents and
warrants to the Company that: (a) he is subject to no contractual, fiduciary
or other obligation which may affect or limit the performance of his duties
under this Agreement, (b) he has delivered to the Company his completed and
signed Officer's Questionnaire, (C) his answers therein are true and complete,
(d) his employment with the Company will not require him to use or disclose
proprietary or confidential information of any other person or entity, and (e)
he does not own and has no interest or claim in any patent, patent application,
copyright, trade secret, trademark or other intangible interest or property.
6. Confidentiality; Non-Solicitation Agreements; Proprietary
Information.(a) The Employee realizes that his employment with the Company will
involve access to information, whether or not in tangible form, which is the
property of the Company and which is not known in the trade or generally by the
public, and to information which is identified as confidential by the Company,
or which the Employee has reason to believe is being maintained in confidence,
whether embodied in memoranda, manuals, letters or other documents, computer
disks, tapes or other information storage devices or any other media vehicle
("Proprietary Information"). Proprietary Information includes all results,
intermediate and final, of the Company's business plans and product and
marketing activities in which the Employee may participate or of which the
Employee may obtain knowledge during his employment with the Company, together
with business, manufacturing, development and research methods, including
(without limitation) product design and specifications, manufacturing
procedures and tolerances, research and development tools, test procedures,
prices and pricing formulae, cost information, customers' special materials and
product specifications and requirements, suppliers, sales records, salesmen's
reports, customers lists, customer contact reports, and customer records. The
Employee agrees to treat Proprietary Information as confidential both during
the Term and thereafter and to recognize and protect the property rights of the
Company. The Employee recognizes and further agrees (i) that the
identification of the existing employees, consultants, customers, suppliers,
buying agents and contractors of the Company, and of employees, consultants,
customers, suppliers, buying agents and contractors of the Company developed
during the Term, are and shall be the sole and exclusive property of the
Company and constitute Proprietary Information, and that the Employee neither
has nor shall have any right, title or interest therein; (ii) that such
Information is and must continue to be confidential; (iii) that such
Information is not readily
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accessible to competitors of the Company; and (iv) that the Company's present
and future business relationship with its employees, consultants, customers,
suppliers and contractors is and will continue to be of a type which normally
continues unless interfered with by others. The Proprietary Information is not
as a matter of corporate policy ever disclosed to the public except as
authorized in writing by an executive officer other than the disclosing party.
The Employee agrees that during the term of his employment and thereafter, he
will not use such information for himself or others, or divulge or convey such
information to others, and at all times will hold such information in strictest
confidence; provided, however, that the Employee shall not be liable for
disclosure of that information if (A) the information is in, or becomes part
of, the public domain, other than by the Employee's disclosure of the
information or (B) the information is disclosed by the Employee with the prior
written approval of another executive officer the Chairman of the Board of
Directors of the Company. All equipment, recordings, notebooks, documents,
files, samples, correspondence, lists, other written and graphic records and
the like prepared or obtained by the Company or its employees shall be and
remain the property of the Company and shall be returned promptly upon its
request.
(b) The Employee agrees that, during the Term, and for a
period of two years after its termination, but for a minimum period of three
years from the date of this Agreement, he shall not solicit for employment,
directly or indirectly solicit, advise or recommend for employment any person
(other than himself) who is employed by the Company, or by ATGI, or any
subsidiary or affiliate of ATGI as of the date of the Employee's employment
terminated.
(c) It is understood and agreed that the Company would
suffer irreparable harm for which there is no adequate remedy available at law
in the event of a breach of this Section 6 by the Employee, and, in addition to
remedies available at law, the Company shall by entitled to enforce the
provisions of this Section 6 through actions in equity, including injunctive
and similar remedies.
(d) The provisions of this Section 6 shall be
non-exclusive and shall not limit any rights the Company may have at law, and
no action taken by the Company pursuant to this Section 6 shall constitute a
waiver of any rights the Company may have at law.
(e) If for any reason any court of competent jurisdiction
shall have deemed the provisions of this Section 6 unreasonable in duration or
in geographic scope or otherwise unenforceable, the prohibitions herein
contained shall be restricted to such time and geographic area or shall
otherwise be reformed in such manner as the court determines to be reasonable.
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(f) The Employee recognizes that, because of the nature
of the subject matter of Section 6, it would be impractical and extremely
difficult to determine the Company's actual damages in the event of his breach
of Section 6. Accordingly, if the Employee commits a breach, or threatens to
commit a breach, of any of the provisions of Section 6, the Company shall be
entitled to have the provisions of said Section specifically enforced by
temporary, preliminary and permanent injunctive relief without the posting of
bond or other security by and court of competent jurisdiction, notwithstanding
the provisions of Section 9 hereof.
7. Ownership of Employee Developments.(a)All copyrights, patents, trade
secrets, or other intellectual property rights associated with any ideas,
concepts, techniques, inventions, processes, or works of authorship developed
or created by the Employee during the Term (collectively, the "Work Product")
shall belong exclusively to the Company and shall, to the extent possible, be
considered a work made by the Employee for hire for the Company within the
meaning of Title 17 of the United States Code. To the extent the Work Product
may not be considered work made by the Employee for hire for the Company, the
Employee agrees to assign, and automatically assigns to the Company at the time
of creation of the Work Product, without any requirement of further
consideration, any right, title or interest the Employee may have in such Work
Product. Upon request of the Company, the Employee shall take such further
actions, including execution and delivery of instruments of conveyance, as may
be appropriate to give full and proper effect to such assignment.
(b) The Employee assigns to the Company, will hold for
the Company's benefits exclusive benefit, and will confirm assignment thereof
in writing without additional payment, all Employee's right, title and interest
in and to discoveries, inventions and improvements conceived or made by the
Employee, whether solely or jointly with others, during his employment with the
Company (including periods prior to the effective date of this Agreement) and
which fall within the scope of the Company's ATGI's or any of its subsidiaries
or affiliates actual or anticipated business or research and development
whether made within or outside of usual work hours, and whether on or off
Company premises. The Employee will make prompt and full disclosure thereof to
the Company and maintain records of creative or inventive activities and
deliver such records to the Company at termination of employment or as
requested by the Company. The Employee will assist the Company both during and
after his employment with the Company in every proper manner and at the
Company's expense and without cost to the Employee to obtain for the Company in
any and all countries and to maintain and enforce patents, on all discoveries,
inventions, improvements, or refinements assigned by the Employee to the
Company as provided above, or which the executive is bound to assign to the
Company, and for that purpose, the Employee will sign all documents which the
Company deems necessary or desirable.
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8. Avoidance of Conflicts of Interest. During the Term, the Employee
shall not engage in any business activity that conflicts with the interests of
the Company or his duties under the Agreement. He shall not have any direct or
indirect financial interest in, or receive any direct or indirect benefit from,
any competitor, except for minor investments, as part of a diversified
portfolio, in the securities of a competitor whose stock is traded on a
national securities exchange.
9. Disputes; Arbitration. In the event that a dispute should arise
between the Company and the Employee, under or in connection with this
Section and such dispute shall not have been resolved within 30 days after it
arose, then such dispute, subject to the provisions of Section 6(f) hereof,
shall be submitted to arbitration. Such arbitration shall be conducted in New
York, New York under the rules of the American Arbitration Association then
obtaining. The arbitrator(s) shall award the predominantly prevailing party in
the arbitration its reasonable attorney's fees and other costs and expenses in
connection with the arbitration. Such award shall be final and binding, and
judgment upon such award may be entered in any court having jurisdiction
thereof.
10. Notices. All notices, requests, consents and other communications,
required or permitted to be given hereunder, shall be in writing and shall be
deemed to have been duly given if delivered personally, or mailed first-class,
postage prepaid by registered or certified mail (notices shall be deemed to
have been given when so delivered personally or, if mailed, two days after the
date of mailing) as follows, or to such other address as either party shall
designate by notice so given to the other in accordance herewith:
If to the Company, to:
Alpha Technologies Group, Inc.
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to the Employee, to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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11. General.
11.1 This Agreement shall be governed by and construed and
enforced in accordance with the local laws of the State of Massachusetts
applicable to agreements made and to be performed entirely in Massachusetts.
11.2 The article and section headings contained herein are
for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
11.3 This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by either party that is not embodied in this
Agreement, and neither party shall be bound by or liable for any alleged
representation, promise or inducement not so set forth.
11.4 This Agreement, and the Employee's rights and
obligations hereunder, may not be assigned by the Employee. The Company may
assign its rights, together with its obligations, hereunder in connection with
any sale, transfer or other disposition of all or substantially all of its
business or assets; in any event the obligations of the Company hereunder shall
be binding on its successors or assigns, whether by merger, consolidation or
acquisition of all or substantially all of its business or assets.
11.5 This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by the party to be charged therewith.
The failure of either party at any time or times to require performance of any
provision hereof shall in no matter affect the right at a later time to enforce
the same. No waiver by either party of the breach of any term or covenant
contained in this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be, or construes, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in this Agreement. The invalidity or unenforceability of
any term or provision of this Agreement shall in no way impair or affect the
balance thereof, which shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Agreement on August
26, 1996 effective as of the Commencement Date.
WAKEFIELD ENGINEERING, INC.
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Agreed to With Respect
to Section 3.3 only:
ALPHA TECHNOLOGIES GROUP, INC.
By: /S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, President
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